Monday, November 13, 2017
Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 5: How to Create a Practical Context for Learning?
While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 2. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line. -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]
Contemporary Issues in Teaching Land Use
Question 5: How to Create a Practical Context for Learning?
by Stephen R. Miller
It is a little daunting following John Nolon in discussing the practical context for teaching land use law because he, along with Patty Salkin (who will finish up this round of essays), are really synonymous with this topic and have done so much to guide my generation in practical learning over the years. Here, though, are some thoughts about what I think I do right, and where I am still seeking to do better, on this important topic.
When we started writing this latest edition of the casebook, one of the major discussions we had was how to teach both the basics of zoning, while also recognizing that most major development plays by different rules, such as a planned unit development or a development agreement. The end result is that Chapter 3 largely addresses the basics, while Chapter 4 is largely re-envisioned to address subdivisions, PUDs, DAs, and all of the tools now sometimes referred to as the "contract reformation in land use."
To create a practical context for learning in these chapters, I have students attend a hearing of the Boise planning and zoning commission, which conveniently is located just two blocks from the law school. I choose the hearing date for students based upon its agenda. I also tell the students which agenda items I want them to follow and have them read the packet in advance. I typically pick a conditional use permit, which assists with Chapter 3, and a planned unit development, which assists with Chapter 4. Because Boise is booming, almost every commission hearing has both of these permits on the agenda, but I realize that may not be true in some other jurisdictions. I also ask students to write a one page single-spaced response paper. I tell them they don't have to focus on the law in the paper; instead, they can write about the effectiveness of the community speakers, the nature of the process, what they thought about the role of the city attorney, the tone of the commission, how they would have voted, and so on. I find that this works pretty well for the basic pedagogical purposes of Chapters 3 and 4.
I do, however, have several issues that I continue to wrestle with as I try to think about a stronger practical component to this course. First, a major problem I have is how to teach good land use process if local practice falls below that standard to which you want students to aspire. This is a major problem in Idaho. In Idaho, city attorneys start as criminal lawyers and then, if they are lucky, about a decade later, they are promoted to the civil side. That means that most of the city attorneys in Boise, much less the rest of the state, have very little exposure or knowledge of the procedural aspects of land use law. As I wrote in another post over the summer, this can lead to some highly unusual proceedings, such as a recent case where the planning department rationalized its actions on appeal according to criminal law, rather than the applicable administrative law, standards. How do you explain that to students? What I say to students is that, if you are representing a developer or a community group, you should recognize the failure of process as an opportunity for appeal and litigation. If students end up working for the city, I tell them they should make a point to try to improve these procedural matters. Nonetheless, the difference between the ideals I teach in class and the realities of what happens in a boom-town like Boise--and, I suspect, in many other boom-towns of the Mountain West and South--is something that I still reckon with when I teach this class.
A related concern, which is a much broader dilemma that I wrestle with, deals with how to teach in the context of a mismatch between rapid growth of urban areas and the region's expertise to handle growth. The Mountain West and the South continue to be the two fastest growing regions in the country, but they are also the two regions, I would argue, where there is less emphasis on effective land use controls. This mismatch between growth and expertise in managing it, I believe, is a worldwide phenomenon. As the IPCC's latest report noted, in the climate change context, “[o]vercoming the lack of political will, restricted technical capacities, and ineffective institutions for regulating or planning land use will be central to attaining low-carbon development at a city-scale.” 2014 IPCC Mitigation Report §12.6. If I did not live in Boise, which is almost always on the list of the 20 fastest growing metro regions by percentage, I would probably have passed this sentence by without notice. But living where I do, it expressed a great concern I have about the future of land use law, as well as how we train future land use lawyers. Every day, I see tremendous growth in this region, and yet, I know that whether Boise addresses its growth in a meaningful way is determined by political will, technical capacity, and effective institutions. Like most fast growth regions in the U.S. and the world, Boise struggles with all three. I would like to believe that my class could be the beginning of addressing all three of those deficiencies. That is a daunting lift, but a broader aspect of the practical learning that I hope to incorporate better into my classroom in future years.
The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year. Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.
Previous posts in the Contemporary Issues in Teaching Land Use series
Question 5: How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]